Richey v. Robertson

169 P. 99 | Or. | 1917

Opinion by

Mr. Chief Justice McBride.

1, 2. A great portion of the respondent’s brief in this case is taken up with a discussion of the mrnic pro tunc order, which recites that upon the argument of the demurrer to plaintiff’s complaint, the demurrer was overruled, and that plaintiff was permitted to amend the complaint by interlining the words “and delivered.” Whatever the rule may be in other states it is settled here that a nunc pro tuno order may he made upon the memory of the court alone: State v. Donahue, 75 Or. 409-416 (144 Pac. 755, 147 Pac. 548).

It is evident from an inspection of the record that there was an omission in the record of the proceedings of January 5, 1917, as all parties agree that a demurrer was argued and overruled on that date, and yet there is no record of that fact except the nunc pro tunc order made on April 17th. The mmc pro tunc order is conclusive upon this court, and as no motion was made to strike out the complaint as amended, for want of a verification, the objection must he taken as waived.

There was really but one issue of fact in the case. The plaintiff claimed, and his testimony tended to show, that the defendant had ordered the piano and agreed to pay $150 cash down, and $160 about the 16th of December; that in pursuance of such contract he delivered to and the defendant accepted the piano, but thereafter refused to pay the $150, as promised. The defendant claimed, and his testimony tended to show, that plaintiff requested permission to send the piano to his house upon trial, and that he consented to the proposal and that there was never any agreement on his part to purchase the piano or to pay for the same, and that thereafter he seasonably notified the plaintiff of his intention not to take the instrument and requested him to remove it, which plaintiff failed to do.

3-5. If plaintiff’s theory was the true one the contract was an executed contract, and the statute of frauds could not be invoked. If defendant’s contention as to the facts was true, there never was a contract of sale, or delivery, which could satisfy the statute. Plaintiff could only recover by showing an executed contract; the execution depending upon an agreement to purchase plus a delivery and acceptance, pursuant to such an agreement. The remark of the court, therefore, that “this is an executed agreement” assumed the main fact in dispute and certainly had a tendency to prejudice defendant’s case before the jury.

The judge who tried this case is known to be one of the most careful, painstaking jurists in the state, and it is evident that he had in his mind and intended to say “the plaintiff is suing upon an executed contract.” The expression used was probably a mere slip of the tongue but the case was a close one; the evidence so far as it appears in cold type, was very evenly balanced, and under such circumstances it is at least possible if not probable that the minds of some jurors might have clung to the remark and been influenced by it.

We would not in every case be disposed to attach much importance to a remark of the court made in the course of a ruling upon testimony, but in a close case such as this, where the remark went to the very vitals of the issue being there tried, we think it constitutes reversible error, which was not cured by a general instruction to disregard any remark the court might have made during the course of its rulings upon the testimony. Under the peculiar circumstances the remark should have been expressly withdrawn.

6. Objection is made to questions asked defendant upon cross-examination in regard to the particulars of a conversation which he testified he had with plaintiff in regard to plaintiff’s claim against him. The matters elicited had little if any relevancy to the case, but the witness being adverse the plaintiff of course could not know this in advance, and under such circumstances considerable latitude should be allowed in cross-examination.

Our statute provides that:

“When part of an act, declaration, conversation or writing is given in evidence by one party, the whole or the same subject may be inquired into by the other”: Section 711, L. O. L.

In Mahon v. Rankin, 54 Or. 328, 329 (102 Pac. 608, 103 Pac. 53), it is said:

“The better rule is, that the balance of the conversation to be competent must be material and in some way affect that portion of the conversation already proved.”

Tested by this rule it is difficult to see how the balance of the conversation which attempted unsuccessfully to elicit from the witness an admission that he had followed plaintiff upon the street and threatened to whip him, and stated he had been assured that if he would whip plaintiff his fine would be paid, tended to explain or affect the facts already brought out. In any event, his answers rendered the questions harmless.

7. Another assignment of error relates to the exclusion of certain testimony offered by plaintiff and arose in this wise. It was attempted to be shown by plaintiff that when Frank Clevenger, a drayman, took the piano from the store of plaintiff to defendant’s residence, he said to defendant and his wife: “You have a nice piano here,” and that defendant or his wife said, “Yes, we think so.” When defendant was on the witness-stand, his counsel asked him referring to this incident:

“Did you intend to tell him at the time you had bought it? Ans. No, sir.”

Upon motion of plaintiff, this answer was stricken out.

“Q. Did you mean to inform the drayman you had bought it?”

Mr. Green objected to this as immaterial, incompetent and invading the province of the jury.

“The Court: Where they are unambiguous it is for the jury to say what he meant by it, and the objection is sustained.”

We are of the opinion this ruling was erroneous. The plaintiff could justly argue that by the language used the defendant intended to convey to the drayman the impression he had purchased the piano and that it was his property. The language was subject to such a construction, but on the other hand it might properly have been used in a case where the instrument had been taken on trial. The court substituted a rule for the interpretation of contracts for a rule governing the admissibility of evidence. In interpreting a contract it is not what impression one party meant to convey to another, which defines the rights of the contractee, but what he says. For instance, if Richey had said to the defendant, “I will sell you this piano for $300,” and defendant had said, “All right, send it up to the house and I will take it,” and plaintiff had sent it and defendant received it, here would be a complete contract and defendant could not be allowed afterwards to say that when he said, “I will take it; send it up,” that he meant he would take it on trial and if unsatisfactory would return it.

This estoppel arises by reason of a contractual relation having been created by the language of acceptance. But there was no contractual relation existing between defendant and the drayman, and even if in answer to the drayman’s question he had gone further than the record indicates, he should have been allowed to state his reasons for doing so. Besides the answer was in fact ambiguous. The plaintiff might and no doubt did contend that the defendant intended for the drayman to understand by his language he had purchased the piano, and it was therefore an admission against interest, while the defendant could fairly contend that by the language used he intended to make no such admission.

Objections are made to the giving of certain instructions by the court and the refusal of others requested by defendant, but we consider these not well taken. The instructions given fairly covered the whole case and correctly state the law.

For the errors above indicated the judgment is reversed and a new trial directed.

Reversed. Rehearing Denied.